03/26/2014 01:00 PM House JUDICIARY

                     HB 362-SYNTHETIC DRUGS                                                                                 
                                                                                                                                
                                                                                                                                
1:26:17 PM                                                                                                                    
                                                                                                                                
CHAIR KELLER announced  that the next order of  business would be                                                               
HOUSE BILL  NO. 362,  "An Act  relating to  a prohibition  on the                                                               
offer,  display,  marketing, advertising  for  sale,  or sale  of                                                               
illicit synthetic drugs."                                                                                                       
                                                                                                                                
1:27:52 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  MAX  GRUENBERG moved  to  adopt  HB 362,  labeled                                                               
28LS1538\U, Strasbaugh, 3/18/14, as a working document.                                                                         
                                                                                                                                
CHAIR KELLER objected for discussion purposes.                                                                                  
                                                                                                                                
1:28:44 PM                                                                                                                    
                                                                                                                                
EDRA  MORLEDGE,   Staff,  Senator   Kevin  Meyer,   Alaska  State                                                               
Legislature,  said  that Senator  Meyer  is  carrying the  Senate                                                               
Version (SB  173).   She noted that  he has  previously sponsored                                                               
legislation to outlaw synthetic  cannabinoids, and the bills have                                                               
passed.  The cannabinoids go by  various names, such as spice and                                                               
bath salt, and they are  commonly used as alternatives to cocaine                                                               
and  marijuana.   The  substance is  sold by  the  gram in  small                                                               
packets in convenience  stores and smoke shops, and  it is easily                                                               
accessible,  she explained.    Unfortunately,  many people  think                                                               
these  drugs are  safe, including  parents, because  they are  so                                                               
readily available.   "They're actually not safe;  they cause many                                                               
psychotropic  effects on  users," she  stated.   The  bill is  an                                                               
attempt to  stop the  sale of  these drugs  by targeting  the way                                                               
they are  packaged, rather than  the chemical compounds  they are                                                               
made of.   "What  happens is, the  manufacturers of  these drugs,                                                               
who  are often  overseas,  simply change  the  compounds that  we                                                               
previously outlawed  by a molecule or  two, and all of  a sudden,                                                               
they're not illegal anymore," she explained.                                                                                    
                                                                                                                                
MS.  MORLEDGE   said  that  the  Anchorage   Assembly  passed  an                                                               
ordinance  to ban  the packaging  of synthetic  cannabinoids, and                                                               
the House and  Senate bills are modeled after  that ordinance, as                                                               
it has  been very successful.   "They  virtually wiped it  out of                                                               
all  of the  smokes shops  and convenience  stores," she  stated.                                                               
She  surmised  that Alaska  is  the  only state  attempting  this                                                               
approach-to  target the  packaging rather  than the  compound-and                                                               
"it  hasn't really  been challenged  as ...  a state  law."   She                                                               
noted  that a  similar ordinance  was passed  in Maine  and there                                                               
have been no challenges.                                                                                                        
                                                                                                                                
1:31:45 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GABRIELLE  LEDOUX asked  if  [the  label] has  to                                                               
include  some  or  all  of  the  following  criteria:  false  and                                                               
misleading;  does not  specify the  name of  the synthetic  drug;                                                               
does not specify the name  and place of the manufacturer, packer,                                                               
or distributer; and  all of [the criteria  listed under paragraph                                                               
(2)].                                                                                                                           
                                                                                                                                
1:32:11 PM                                                                                                                    
                                                                                                                                
MS. MORLEDGE noted  that her understanding is  that the substance                                                               
would have to meet one  criterion from [paragraph] (b)(1) and one                                                               
from [paragraph] (b)(2).                                                                                                        
                                                                                                                                
1:32:31 PM                                                                                                                    
                                                                                                                                
KATHLEEN   STRASBOUGH,  Attorney,   Legislative  Legal   Counsel,                                                               
Legislative  Legal  and  Research Services,  Legislative  Affairs                                                               
Agency,  said, yes,  [the package]  would have  to have  one from                                                               
(b)(1) and one from (b)(2).                                                                                                     
                                                                                                                                
1:32:45 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  LEDOUX  suggested  that  the  manufacturer  could                                                               
simply put the ingredients on the label in order to be legal.                                                                   
                                                                                                                                
MS.  STRASBOUGH  she  said  does   not  have  all  of  the  facts                                                               
associated with the  bill, but those who trade  in these products                                                               
do  not  like the  scrutiny  and  do  not  want to  provide  that                                                               
information.                                                                                                                    
                                                                                                                                
1:33:45 PM                                                                                                                    
                                                                                                                                
MS. MORLEDGE  said the  items are being  marketed as  things that                                                               
they are  not, like  incense.  The  packaging often  states, "Not                                                               
for human consumption,"  but that is exactly what  it is intended                                                               
for,  she  explained.   She  suggested  that the  Anchorage  city                                                               
prosecutor answer the question.                                                                                                 
                                                                                                                                
CHAIR KELLER  asked if  instant coffee,  a stimulant,  could fall                                                               
under this prohibition.                                                                                                         
                                                                                                                                
1:35:34 PM                                                                                                                    
                                                                                                                                
MS. STRASBOUGH said this bill  depends upon mislabeling; a person                                                               
selling coffee  would likely not want  to disguise it.   There is                                                               
another  law,  Imitation  Controlled Substance,  where  something                                                               
like that  might occur, but  the element of falsity  is necessary                                                               
for a violation to be committed under HB 362, she explained.                                                                    
                                                                                                                                
CHAIR  KELLER  assumed  [instant  coffee  could  fall  under  the                                                               
statute].                                                                                                                       
                                                                                                                                
1:36:47 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG said  he agrees  with Chair  Keller and                                                               
also with Representative  LeDoux.  He turned to page  1, line 11,                                                               
where the intent is correctly  drafted because the item must have                                                               
(A),  (B), or  (C),  and "or"  is the  key  word [under  (b)(1)].                                                               
However, "and" appears  on page 1, line 13, but  there only needs                                                               
to be one  of (A) through (G) under [(b)(2)].  The word "or" does                                                               
not appear at the  end of line 18, like it appears  at the end of                                                               
line 11.   He said he will offer an  amendment at the appropriate                                                               
time to ensure that it  requires only one criterion from [(b)(2)]                                                               
by inserting the word "or".                                                                                                     
                                                                                                                                
1:38:12 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG asked if his suggestion is correct.                                                                    
                                                                                                                                
CHAIR  KELLER  stated  that  that  can be  worked  out  with  the                                                               
sponsor.                                                                                                                        
                                                                                                                                
REPRESENTATIVE  GRUENBERG said  it is  not clear  to him  whether                                                               
each  sale would  be a  separate violation.  "If you  sold 10  of                                                               
these  packages to  one person  and three  to another,  you would                                                               
have committed 13 separate offenses?"                                                                                           
                                                                                                                                
1:39:21 PM                                                                                                                    
                                                                                                                                
MS. MORLEDGE  answered that  the intent is  a $500  violation per                                                               
package.                                                                                                                        
                                                                                                                                
REPRESENTATIVE  GRUENBERG said  he will  offer an  amendment that                                                               
specifies that  intent.  He then  said he is concerned  about the                                                               
question  that Chair  Keller raised.   "We  have things  that are                                                               
depending upon  having street  names," and  those names  vary, so                                                               
how can  it withstand a  test for vagueness?   "I see  this thing                                                               
not being  challenged as a whole  bill but in an  individual case                                                               
where  they have  something from  category A  and something  from                                                               
category B, and  I see one thing is legal,  and somebody will say                                                               
'well, I bought a legal drug.'"                                                                                                 
                                                                                                                                
1:40:57 PM                                                                                                                    
                                                                                                                                
MS.  MORLEDGE  said  the  sponsor  will be  happy  to  work  with                                                               
Representative Gruenberg on refining the bill's language.                                                                       
                                                                                                                                
REPRESENTATIVE  BOB  LYNN  noted  page  2,  line  19,  where  the                                                               
esoteric  names [of  the product]  are listed.  "What happens  if                                                               
somebody comes  up with a new  name that is not  included in this                                                               
list?"                                                                                                                          
                                                                                                                                
1:41:34 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG answered  that the law would  have to be                                                               
amended.                                                                                                                        
                                                                                                                                
MS. MORLEDGE  said the  names are included  now because  they are                                                               
known; perhaps  when the names  change, the list can  be deleted.                                                               
These  are   drugs  that  we   would  like  off  of   the  street                                                               
immediately, she stated.                                                                                                        
                                                                                                                                
REPRESENTATIVE  LYNN  asked  if  there was  language  that  would                                                               
include future street names.                                                                                                    
                                                                                                                                
MS. MORLEDGE said, "We would be happy to work on that."                                                                         
                                                                                                                                
1:42:34 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE CHARISSE MILLETT said she  is willing to work with                                                               
both  Representatives  Gruenberg  and  Lynn.   "It  is  an  ever-                                                               
changing group of  names, and that's what we struggle  with.  And                                                               
it's  an ever-changing  group of  drugs  that are  mixed in  with                                                               
these," she  noted.  It  is difficult to capture  everything, but                                                               
she wants to make  sure kids do not have access  to the drugs and                                                               
people do not sell them.   She reiterated that she will work with                                                               
anyone to make the bill better.                                                                                                 
                                                                                                                                
REPRESENTATIVE  LEDOUX asked  about  a definition  of "false  and                                                               
misleading."                                                                                                                    
                                                                                                                                
1:43:39 PM                                                                                                                    
                                                                                                                                
MS.  STRASBOUGH said  those  terms  are in  frequent  use in  the                                                               
statutes.   "I'm sure that  a definition  can be put  together if                                                               
someone wanted one," she added.                                                                                                 
                                                                                                                                
REPRESENTATIVE LEDOUX asked if it is defined.                                                                                   
                                                                                                                                
MS. STRASBOUGH  said she  has not  researched it,  but it  is her                                                               
impression that the statute uses the term without definition.                                                                   
                                                                                                                                
1:44:46 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE LEDOUX  said she is  looking forward to  an answer                                                               
on why  a person [selling  the substance] would not  just specify                                                               
what is in  the package and who manufactured it  in order to make                                                               
it legal.                                                                                                                       
                                                                                                                                
VASILIOS  GIALOPSOS,  Staff,   Representative  Charisse  Millett,                                                               
Alaska State Legislature, said that  the overwhelming majority of                                                               
these synthetic substances  comes from China.  In  order for them                                                               
to enter the United States  under those pretenses, the substances                                                               
would   have  to   comply  with   the  federal   Food  and   Drug                                                               
Administration (FDA), and they would not be able to do so.                                                                      
                                                                                                                                
REPRESENTATIVE LEDOUX asked why the  substances would not be able                                                               
to  meet  the  FDA  requirements.     If  it  cannot  meet  those                                                               
requirements, why is it not illegal?                                                                                            
                                                                                                                                
MR. GIALOPSOS said  that was an excellent question  that he would                                                               
not be answering at this point.                                                                                                 
                                                                                                                                
                                                                                                                                
1:46:44 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG noted that page  3, line 17, states that                                                               
the commissioner of the Department  of Public Safety may delegate                                                               
its  authority  as appropriate.    He  asked  if that  phrase  is                                                               
normally used,  because it does  not specify any outer  limits of                                                               
what may be  delegated.  It could be  unconstitutional, he added.                                                               
He  then  noted  that  the  language does  not  specify  who  the                                                               
authority can be delegated to;  it could be to a non-governmental                                                               
agency, and he sees potential problems.                                                                                         
                                                                                                                                
                                                                                                                                
1:48:17 PM                                                                                                                    
                                                                                                                                
GUS SANDAHL,  Kenai, Alaska,  said he  works in  law enforcement,                                                               
and he is very supportive  of legislation that prohibits the sale                                                               
and  possession of  these substances  across all  of Alaska.   He                                                               
appreciates  the  time  taken  to  eliminate  loopholes  and  for                                                               
considering the bill.                                                                                                           
                                                                                                                                
CHAIR KELLER said he agreed and complimented the sponsor.                                                                       
                                                                                                                                
REPRESENTATIVE  GRUENBERG   said  he  had  two   more  questions.                                                               
Regarding the section with the  penalties, page 3, lines 21-22, a                                                               
person who violates  the law is guilty of a  violation.  "Are you                                                               
intending  to  punish  the  person   who  makes  the  drugs,  who                                                               
wholesales  them,  who  retails  it,  or all  three?"    He  then                                                               
referred to  page 3, line  30, [defining  a synthetic drug]  as a                                                               
chemical  intended to....  He asked  who would  have to  have the                                                               
intent,  "and  how are  you  going  to prove  it?"    He said  he                                                               
supports the concept  [of the bill], but he is  trying to save it                                                               
from potential serious challenges.                                                                                              
                                                                                                                                
REPRESENTATIVE  LEDOUX  surmised  that  a violation  is  a  civil                                                               
matter, rather  than a  criminal matter.  "If it's  civil, you're                                                               
not  entitled to  a public  defender;  you're not  entitled to  a                                                               
trial by  jury; is that the  reason for making it  a violation as                                                               
opposed to a misdemeanor?"                                                                                                      
                                                                                                                                
CHAIR KELLER  said that question  will be answered later,  and HB
 was held over.